Los Angeles County Superior Court
Case Number: KC062856??? Hearing Date: April 26, 2016??? Dept: O
Private Label PC, Inc. v. PQI Corporation, et al. (KC062856)
Defendant Power Quotient International, Ltd. (and PQI Corporation USA by joinder)?s MOTION TO STRIKE PORTIONS OF PLPC?S FIFTH AMENDED COMPLAINT
Respondent: Plaintiff Private Label PC, LLC
TENTATIVE RULING
Defendant Power Quotient International, Ltd. (and PQI Corporation USA by joinder)?s motion to strike portions of PLPC?s fifth amended complaint is GRANTED in part, and DENIED in part.
The court grants moving party?s request for Judicial Notice
The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court’s own files or records). (CCP 437.) The motion has not been waived.
In a prior motion to strike hearing, Plaintiff had contended that its open book account cause of action supported attorney?s fees. This court allowed Plaintiff to amend the complaint to attach the contracts that form the basis of its attorney?s fees request. Upon review of the 4AC, this court later determined that the invoices clearly show a book account between United Star and Plaintiff, not PQI and Plaintiff. Accordingly, the open book account cause of action was stricken.
The 5AC, however, still includes a request for attorney?s fees, despite the dismissal of all contract claims. Plaintiff now contends that attorney?s fees is proper based on the ?tort of another? doctrine. However, the ?tort of another? doctrine ?does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant? the tort of another doctrine does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants?. ?The rule of Prentice was not intended to apply to one of several joint tortfeasors in order to justify additional attorney fee damages. IF THAT WERE THE RULE THERE IS NO REASON WHY IT COULD NOT BE APPLIED IN EVERY MULTIPLE TORTFEASOR CASE WITH THE PLAINTIFF SIMPLY CHOOSING THE ONE WITH THE DEEPEST POCKET AS THE ?PRENTICE TARGET.? SUCH A RESULT WOULD BE A TOTAL EMASCULATION OF CODE OF CIVIL PROCEDURE SECTION 1021 IN TORT CASES. (Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 80-81.) Here, Plaintiff is suing PQI and other Defendants as joint tortfeasors based on conspiracy to defraud. Pursuant to Gorman v. Tassajara, the ?tort of another? does not apply in this instance.
However, this court finds that the allegations relating to non-parties Cheng Uei/Foxlink, PQI Hong Kong, and PQI?s ?fraudulent schemes? may be relevant to Plaintiff?s Fraud claims, and will allow such allegations to remain. Although Plaintiff failed to meet its evidentiary burden in opposition to Lai?s MSA, such does not preclude Plaintiff from alleging its theory of liability in the 5AC, and presenting additional evidence, if any, at trial.
Accordingly, motion to strike attorney?s fees is GRANTED, and motion to strike Cheng Uei/Foxlink, PQI Hong Kong, and PQI?s ?fraudulent schemes? allegations are DENIED.